Monthly Archives: May 2005

In the process of researching an upcoming post about blogging in the ADR world, I stumbled across The Harvard $1 Challenge Blog, an ad hoc blog and negotiation game premised on an intriguing idea: players are invited to accept a challenge to create as much value as possible from a single dollar bill. (The concept of “creating value” in negotiation means to expand the pie and increase the value of an agreement for all parties involved, as opposed to “claiming value”, which is all about getting the biggest slice of the pie for yourself as possible and “winning” the negotiation, regardless of what that may mean for the other participants.)

The general rules of the Harvard $1 Challenge are:

1. Create as much value as possible from a one dollar bill
2. Interpret the concept of value as broadly as possible
3. Account for the interests of others as well as for our own group’s
4. Consider how we might benefit from differences in valuation and divergent predictions

One example of value creation offered on the blog is getting the dollar bill changed into four quarters, feeding four expired meters with each of those quarters, and then leaving a note requesting that the recipients of your generosity pay the favor forward by feeding four more meters.

The challenge is extended to students of a Harvard Negotiation Workshop as well as to the general public. Unfortunately at this point the blog seems to have run out of steam, since there is only a single topic posted and no ensuing discussion thread, which is too bad, because this seems an idea which could lead to rich discussion. Hopefully there will be more to come on this blog.

This only whetted my appetite for more negotiation games. Curious to find out whether there might be other such games available online, I dug around on the Internet and discovered links to four prototype games developed by Zapdramatic, a Canadian-based interactive media company which designs online negotiation games and simulations. The prototypes include three negotiation games and one mediation game, which include opportunities for players to test their skills to get a raise from The Boss From Hell or help two angry neighbors end their feud before things get ugly.

For a complete list of Zapdramatic’s other games, you can visit their web site. (You can try out episodes of their other online negotiation games for free, or pay a $5.00 fee for a month’s worth of full access to the site.)

Today is Memorial Day here in the U.S. For those of you who are not familiar with American customs, on Memorial Day the U.S. honors those men and women who laid down their lives in performing military service for this country.

Memorial Day weekend is also the unofficial beginning of barbecue season. You would think that the start of the summer grilling season would represent a time for families and friends to come together and for differences and long-standing feuds to be set aside.

But that’s not the case in North Carolina, as ABC World News Tonight reports today. It seems that all-out war has broken out in North Carolina over what constitutes true North Carolina barbecue—vinegar- or tomato-based sauce, pork shoulder or whole hog. (North Carolina obviously takes its barbecue very seriously. We New Englanders can certainly identify—we experience the same kind of passion over the ingredients that go into real New England clam chowder.)

Seems we’re going to have to bring in that fellow from Deltona, Florida, who offered to mediate a land dispute between city and county officials with the help of some of his homemade barbecued pork ribs.

If human beings are perceived as potentials rather than problems, as possessing strengths instead of weaknesses, as unlimited rather than dull and unresponsive, then they thrive and grow to their capabilities.

Ever since the days leading up to the United States 2004 presidential election, we’ve been hearing endlessly about the red state/blue state division—the vast gulf between states that supported Bush and those which voted for Kerry, and the great cultural war that rages between liberals and conservatives.

It’s not just states that were divided following the election. There were reports that husbands and wives took to sleeping in separate beds, friends ceased speaking to each other, neighbors stopped borrowing each other’s power tools, and ugly battles broke out over family Thanksgiving dinner tables.

Some of us handled this differently. For example, my pal Connie and I tacitly agreed not to talk politics with each other. We both understood that we have very different views politically, and there’s plenty of other stuff to talk about. I can’t understand why she voted for Bush, and she will never understand why I support gay marriage, but we’re friends, we love and respect each other, and that fact helps us disregard our political differences.

That’s definitely one way to deal with it. But there are others who have chosen to take a more influential role in healing the political and cultural divide between Americans—and to do so at a local and national, not simply a personal, level.

For example, there’s Let’s Talk America, an organization created to bring together people from across the political spectrum and across the country to engage in dialogue, town-meeting-style, about the future of American democracy. There are a number of ways to be a part of this project—as a participant in dialogue, a host, a convenor, an endorser, a volunteer, or a donor. For those who are willing to host a dialogue, there is training and support available. A teleconference for dialogue hosts will be held on Sunday, June 5, at 5:00 PST. For further information, visit the Let’s Talk America web site.

There are two other groups involved in promoting dialogue which are worth mentioning here. The National Coalition for Dialogue and Deliberation, whose goal is “fostering a world of conversation, participation and action”, offers links on its web site to numerous models for dialogue.

The Public Conversations Project, best known for its work in successfully fostering dialogue among leaders of pro-choice and pro-life organizations, “promotes constructive conversations and relationships among people who have differing values, world views, and perspectives about divisive public issues.” Its web site includes links for articles and resources on “Bridging US Political Divides”, as well as information on its services and current programs.

I have made the case here in the past that attorneys and mediators should be supportive of the work that each does and recognize the value that each profession brings to those who are in conflict. There is overlap after all between these professions: there are attorneys who are mediators, and mediators who conduct their work in court-connected dispute resolution programs. Mediators routinely refer clients to attorneys when clients need legal advice to make informed decisions; and attorneys often refer clients to mediators to narrow issues and expedite resolution. Our relationship is often a symbiotic one. We should be allies wherever possible, not distrustful competitors.

Towards that end, I invite my ADR colleagues to consider for a moment the present crisis that members of the bar and the judiciary face and to take a look at what the American Bar Association has done to raise public awareness and address this challenge.

As regular readers of this blog know, I am no fan of tort reform or of the use of ADR to limit access to the courts. Those who have suffered a wrong or loss should be able to choose among any number of mechanisms for resolving disputes—not just the array of processes that constitute alternative dispute resolution, but also litigation which includes the full panoply of remedies traditionally available under law and equity.

Tort reform of course is not the only threat to an independent and fully accessible judiciary. Judges and attorneys daily come under attack by politicians and pundits alike (these attacks reached their nadir during the legal battle over Terri Schiavo when House Speaker Tom DeLay and other conservatives in Congress and elsewhere threatened judges with retaliation and even implicitly condoned violence against the judiciary). No other profession in the U.S. today is so unjustly or maliciously maligned. (For some classic examples of the kind of overheated rhetoric targeting “judicial tyranny”, check out Phyllis Schlafly’s Eagle Forum. This stuff would be knee-slappingly funny if it weren’t so scary.)

Fortunately the American Bar Association is not about to take this lying down. To counter the attack on the judiciary and members of the legal profession, the ABA offers on its web site the following ammunition:

The ABA Toolkit for Bar Leaders: Supporting America’s Judiciary. This toolkit, designed for members of the bar, bar leaders, and anyone else who cares about the future of the judiciary, provides links to statements, press releases, and sample documents, as well as links to online information and resources.

Medical Malpractice Toolkit. The Medical Malpractice Toolkit includes FAQs, expert studies, and other resources aimed at providing the public and members of the bar with accurate information about medical malpractice litigation and malpractice reform initiatives.

The American Bar Association’s Response to the Criticism of the Courts, the Judiciary, and the Legal Profession offers sample letters, FAQs, and a lengthy list of links to resources and studies which respond to or rebut recent criticism of judges and attorneys.

Who says the center cannot hold? Hundreds of news sources last night and this morning have reported that a group of U.S. Senate moderates from both sides of the political aisle successfully negotiated a truce in the increasingly contentious battle over filibustering in the Senate, narrowly averting what could have been full-scale war between Democrats and Republicans.

Seven Democrats and seven Republicans worked against the clock over a four-day period to craft a memorandum of understanding regarding nominations of judges. The agreement allows for floor votes on the nominations of Janice Rogers Brown, William Pryor and Priscilla R. Owen, but preserves the right of Democrats to filibuster judicial nominees “under extraordinary circumstances”. The signatories to the memorandum of understanding also agree to oppose any rules change in Congress which would eliminate the judicial filibuster. Finally, the agreement urges the White House to consult with members of the Senate, both Democrats and Republicans, before submitting judicial nominees for consideration.

This agreement averts the threat of the so-called “nuclear option”—the Republicans’ proposed ban on judicial filibustering.

From a dispute resolution practitioner’s perspective, this memorandum of understanding demonstrates the soundness and success of the principles of interest-based negotiation. The text of the agreement itself, and statements made by the senator-negotiators at the press conference announcing the agreement, reflect the language of collaboration and shared interests.

The agreement contains the following preamble which sets a tone of civility and moderation that evidently characterized the negotiations among these senators:

We respect the diligent, conscientious efforts, to date, rendered to the Senate by majority leader Frist and Democratic leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress. [Emphasis added.]

The agreement also invokes the principle of “good faith”, specifying that signatories will rely upon it in “exercis[ing] their responsibilities under the advice and consent clause of the United States Constitution.” The agreement further stipulates that the signatories will be guided by “the spirit and continuing commitments made in this agreement” in opposing any Senate rules changes regarding judicial nominations.

The agreement concludes by stating the shared goal of the signatories—“to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate”—and then affirms the signers’ common belief that “this agreement is consistent with the traditions of the United States Senate that we as senators seek to uphold.”

At the press conference announcing the agreement, Senator John McCain, a Republican from Arizona who played a leading role in the creation of the agreement, told reporters, “This agreement is meant in the finest traditions of the Senate it was entered into: trust, respect and mutual desire to see the institution of the Senate function in ways that protect the rights of the minority.” McCain’s language recognizes that mutuality of goals and interests informed the dialogue which produced the agreement, as well as the agreement itself.

Senator Robert Byrd, a Democrat from West Virginia, used similar language: “I am very proud of these colleagues of mine on the Republican side and the Democratic side. We have lifted ourselves above politics. And we have signed this document in the interest of United States Senate, in the interest of freedom of speech, freedom of debate and freedom to dissent in the United States Senate.”

The full text of the memorandum of understanding is available at the New York Times web site (to view the article you may need to register at their web site first—fortunately registration is free).

While no doubt there are some on both ends of the political spectrum who remain unhappy with the agreement announced last night, the 14 senators who forged this historic agreement demonstrated the progress that can be achieved when negotiations are conducted in an atmosphere of civility and respect. By placing their focus on common goals and mutually beneficial outcomes, these seven Republicans and seven Democrats offer a valuable lesson in the effectiveness of collaborative efforts in resolving seemingly intractable differences.

Last week I posted about the explosion in popularity of law blogs, more commonly known as “blawgs”, and passed along links to some top-quality blawgs and blawg resources for readers.

This morning I happily discovered another blawg which I am pleased to recommend. ADR practitioners who specialize in workplace disputes should check out George’s Employment Blawg, which offers news, commentary, and analysis of labor, employment, and human resources issues. The “George” named in this blog’s title is George Lenard, a labor and employment attorney from St. Louis, Missouri.

George’s Employment Blawg offers well-written and informative posts analyzing workplace-related trends and developments, which typically include links worth following up on. Spend time as well checking out the intriguing list of blogs that populate George’s blogroll, helpfully broken down by categories ranging from “Blogs, Employment Law” to “Blogs, Labor Law & Unions” to “News, Labor/Employment/HR”, with plenty of other worthwhile stuff in between. George’s Employment Blawg is definitely one-stop-shopping for anyone interested in keeping current on labor and workplace issues.

Recently a number of law bloggers, including one of my personal favorites, the Law Tech Guru Blog, have reported on the results of a survey of attorneys which revealed that more than half of survey respondents would choose mediation or ADR as the career they would be most likely to consider if they left their current jobs.

Attorneys are not the only ones who look at the conflict resolution field as an appealing career alternative. I hear from folks from all kinds of professional backgrounds who are interested in becoming mediators and who seek advice on how to transition into this line of work.

The first step of course is choosing a quality mediation training program. That’s the easy part.

The next step is finding work. (That takes a tad more perseverance and ingenuity.)

For some people, establishing a career in ADR means incorporating mediation into an existing practice, offering it as an additional service to clients. For some it may mean leaving a current position for an ADR-related job in a corporation, non-profit, or institution. And for those with an entrepreneurial spirit, it may mean taking the bold step of establishing a business.

A number of web sites can help job seekers track down ADR-related employment opportunities. And there’s a brand-new blog specially designed for the entrepreneur.

First, the web sites for job hunters:

The web site for the Northern Virginia Mediation Service offers some great tips and links to anyone looking for a career in the conflict resolution field.

So does the web site for the Ohio State University Moritz Law Library—be sure to scroll down to the section entitled Selected Web Sites with ADR Job Postings.

For jobs in the nonprofit sector, please visit Idealist.org, an organization featured earlier on this blog, which seeks to match nonprofit organizations with employees, interns, and volunteers with similar interests.

Finally, don’t miss checking out a great new search engine, Clusty.com, which includes a special tab for job-related searches, providing “clustering of over 500 websites and job boards, the top 200 newspapers, hundreds of associations, and company career pages.” Just enter search terms such as “mediation” or “conflict resolution” to generate results for the field of work you’re interested in. (Thanks to one of my favorite blogs, Campus-ADR Tech Blog, for posting about this.)

Okay, now for the web log specifically designed for ADR entrepreneurs. The brainchild of my friend, colleague, and entrepreneur-extraordinaire Dina Beach Lynch, Mediation Mensch will offer advice, resources, and encouragement to ADR entrepreneurs and provide an interactive forum to share inspiration and ideas.

Dina is the founder and CEO of Kisima Enterprises, Inc., a widely published online author, and the creator of WorkWellTogether.com, a website which offers coaching and other resources for managers and human resources professionals seeking to address workplace conflict.

Dina, who has been recognized for her pioneering work and contributions to the field by a leading association for dispute resolution professionals, is known for launching projects which exemplify creativity and innovation. Mediation Mensch, which was launched just days ago, should be no exception.